Friday, September 30, 2011

Relief Areas for Dogs at Airports: Department of Transportation Proposes Rules, Solicits Advice on Open Issues

Airlines are already covered by a requirement to provide relief areas for service animals, but since the relief areas have to be at terminals, and some airport operators were not being fully cooperative with the airlines, the Department of Transportation has proposed rules that will apply to the terminal operators as well. The rules will apply to most commercial airports, though some of the smallest would not be covered. These smaller facilities, often not much more than glorified hangars, will generally have areas where dogs can take care of their needs.

Those who travel with service animals, and probably those who travel with search and rescue dogs as well as small dogs that come under weight limits for carry-on transport, should take a look at the rules since the Department is seeking advice on issues such as the number of relief areas, whether they have to be located inside terminals, and whether airports should have personnel available to help people, such as blind people and people with mobility impairments, to and from service animal relief areas.

The Department is tentatively recommending that airports be required to provide at least one relief area for each terminal, but concedes that this may not be enough in a large airport where getting to a relief area might result in a person with a service dog missing a flight if the relief area takes the passenger far enough from the route he or she and the dog must take to get to the next flight. Given the hassle of getting past security in a modern airport, there is no question that an adequate relief area should almost always be provided inside of security checkpoints (inside the "sterile area" in Transportation Security Administration terminology).

Also, given the complexity of many airports, it would be advisable to require airport operators to provide personnel that can take individuals with certain disabilities to and from relief areas. This might include blind individuals, individuals with mobility impairments, and those with certain cognitive conditions. It may be possible to do this on some case-by-case basis. Thanks to the Metropolitan Washington Airports Authority for providing the picture of the pet relief area at Dulles International Airport.

Requirement for Carriers

In 2008, the Department had amended 14 CFR Part 382.51, Nondiscrimination on the Basis of Disability in Air Travel, to include a provision stating:

“In cooperation with the airport operator and in consultation with local service animal training organization(s), you must provide animal relief areas for service animals that accompany passengers departing, connecting, or arriving at an airport on your flights.” The “you” here were carriers, and the provision applied to “all terminal facilities you own, lease, or control at a U.S. airport.”

Since “you” did not include the airports themselves, some carriers have been asking the Department for leverage to get cooperation from the airports themselves. The 2011 release provides the following background:

“Part 382 [the provision applying to carriers, not airports directly] does not provide specific directives regarding the design, number, or location of service animal relief areas an airport should have; it simply requires carriers to provide service animal relief areas in cooperation with the airports and in consultation with service animal training organizations concerning the design of service animal relief areas. However, in a Frequently Asked Questions document issued by the Department’s Aviation Enforcement Office on May 13, 2009, examples of factors airlines and airports should consider in designating and constructing areas for service animal relief at U.S. airports are provided. Factors to consider in establishing relief areas include the size and surface material of the area, maintenance, and distance to relief area which could vary based on the size and configuration of the airport. The Department seeks comment about whether it should adopt requirements regarding the design of service animal relief areas and what, if any, provisions the rule should include concerning the dimensions, materials used, and maintenance for relief areas.”

The FAQs from the Aviation Enforcement Office will be discussed below.

Airports Covered

The rules the Department is now proposing would require any airport with 10,000 or more “enplanements,” i.e., passengers boarding planes, to provide service animal relief areas. This would apply to commercial service airports that account for 96% of enplanements annually, a total of about 368 airports. Only very small airports with limited passenger traffic would not be covered.

Number and Placement of Relief Areas

The preamble to the 2011 proposed rules continues:

“We are tentatively proposing a minimum of one service animal relief area for each terminal in an airport. The Department is aware that requiring only one service animal relief area for each terminal in an airport may result in individuals with disabilities missing flights when trying to reach service animal relief areas located outside the sterile area of an airport, especially in larger airports. For this reason, and despite our tentative recommendation of one relief area for each terminal in an airport, the Department seeks comment on what would be an appropriate number of service animal relief areas in an airport. In addition to seeking public comment on how many service animal relief areas should be required at an airport or a terminal, the Department would like to know how that number should be determined. For example, should the number be determined by the size or configuration of the airport (e.g., the number, location and design of terminals and concourses) and/or the amount of time it would take for an individual with a disability to reach a service animal relief area from any gate within the airport? Or should DOT establish a performance requirement that a passenger arriving at any gate with his or her service animal be able to reach a relief area in 10, 20 or some other number of minutes?"

It is my opinion that a performance requirement of about 10 minutes should be imposed. If the relief area could be placed in a room off each concourse, or off a connecting hallway, this would often involve minimal delay for a passenger changing planes.

As to the location of relief areas relative to security checkpoints, the preamble states:

“The Department also seeks comment on the placement of service animal relief areas, particularly whether service animal relief areas should be located inside or outside the sterile area of an airport. It could be important to have relief areas both inside and outside the sterile area of an airport to ensure that individuals with service animals have access to such areas when traveling. For example, an individual traveling with a service animal could arrive at Gate C3 and have an hour to make a connection to a flight at Gate G17. If the individual must leave the sterile area to find a service animal relief area, travel to and from that area, and then go back through security screening, the individual could have difficulty in making the connecting flight. At the same time, we understand that some airports have expressed security and logistical concerns about the placement of service animal relief areas inside the sterile area of an airport. The Department also recognizes that the Transportation Security Administration (TSA) in May 2011 revised its guidelines "Recommended Security Guidelines for Airport Planning, Design and Construction," to make clear that airports may provide Service Animal Relief Areas in sterile areas of the airport, or may provide escorted access to non-designated outdoor areas for the purpose of service animal relief. The Department also recognizes that coordination with the TSA via each airport’s site-specific Airport Security Program would need to occur if service animal relief areas are to be placed inside the sterile area. Consequently, the Department seeks comment on where airport service animal relief areas should be located to ensure that the time and distance to access the service animal relief areas do not create barriers for passengers with disabilities.”

It is not clear why putting a service animal relief area inside a sterile area would cause safety concerns. It would seem that taking a service dog outside of the sterile area would be a much greater risk. The passenger, whatever he is carrying, the dog, and in some cases, an accompanying airport official would all have to be rescreened to some degree if they left the secure areas of the airport. Also, if relief areas are not located inside the terminals, one person who uses a dog for stability has advised me that it often takes upwards of 45 minutes to get to a relief area and back. That is too much.

It would also be a good idea to put a relief area in the baggage claim area as that area often serves the entire airport and passengers arriving with service animals can get them to such an area while they are waiting for luggage.

Assistance for Service Animal Users to Get to Relief Areas

On the question of assistance by airport personnel, the preamble states:

“Finally, the Department has been made aware that some individuals with disabilities, especially, but not only, individuals who are blind or visually impaired, are experiencing difficulty in locating service animal relief areas at certain airports. Under part 382, passengers who request that a carrier provide them with assistance to an animal relief area should be advised by the carrier of the location of the animal relief area. Additionally, if requested, it would be the responsibility of the carrier to accompany a passenger traveling with a service animal to and from the animal relief area."

It is my opinion that human assistance should be required in certain circumstances. Blind passengers with guide dogs may be given directions in braille but should not be expected to ask other people for help if they get lost in a complicated airport. Such assistance may also be appropriate for individuals with mobility impairment or with certain cognitive disorders.

What Should Maps, Diagrams, and Brochures Include about Relief Areas?

The Department wants to know if airports should be required "to specify the location of service animal relief areas on airport Web sites, maps and/or diagrams of the airport, including whether the relief area is located inside or outside a sterile area. We also seek comment on whether airports should be required to provide signage to assist individuals with disabilities in locating service animal relief areas.”

This information should be required, but it is difficult to imagine that airports will have any resistance to such requirements. Airport operators will want to seem dog-friendly, and it must be realized that relief areas will also be used by passengers flying with small dogs, as well as occasionally search-and-rescue dogs that may be allowed in cabins. Also, airports will not want service animal users constantly asking personnel and other airport users where a relief area is located.

Should Requirements for Airports and Airlines Be Uniform?

The Department asks whether the separate requirements for air carriers and airports should be made identical:

“To the extent that the Department issues a final rule with requirements for airports to establish service animal relief areas that are more detailed than the requirements for U.S. and foreign airports that exist in part 382, the Department believes that it is beneficial to have the same requirements apply to U.S. and Foreign airlines. As such, we are soliciting comment on whether any requirement that applies to U.S. airports should also be applied to U.S. and foreign carriers. For example, if the Department creates a requirement that airports must establish service animal relief areas inside the sterile area of an airport, should such a requirement apply to U.S. and foreign air carriers in part 382?”

The rules should probably be made identical so that when there is some friction between a carrier and an airport as to implementation, the Department can assure that both are being tasked with the same goals.

Other Changes in the Proposed Rules

The Department has also made global changes to the regulations of 49 CFR Part 27, such that “nonhandicapped” is revised to “nondisabled,” “handicapped person” is now “individual with a disability,” and “handicapped,” when not followed by “person,” is changed to “disabled.”

Comments on the issues raised are sought by November 28, 2011, but the release states that late-filed comments “will be considered to the extent practicable.” The proposed service animal relief regulation is reproduced in the Appendix below.

Under the question, where should service animal relief areas be established, The DOT Office of Enforcement and Proceedings states:

"Answer: While not specifically required by our rule, carriers and airports may wish to consider the benefits of establishing animal relief areas both inside and outside the secure area (e.g., to accommodate passengers with short connection times, to minimize time needed for escort service, passenger convenience). In doing so, carriers should consult with service animal training organizations. In establishing animal relief areas inside the secure area, carriers and airports should coordinate closely with the Transportation Security Administration (TSA) and the Customs and Border Protection (CBP) offices serving the airport to ensure that the animal relief area can be used consistent with TSA and CBP procedures."

As to who is responsible for installing and maintaining relief areas, DOT says that this should be done cooperatively by both airlines and the airport operator “in consultation with local service animal training organization(s),” and lists the American Dog Trainers Network and Assistance Dogs International. In lieu of consulting with a local service animal training organization, the FAQs state that a carrier may consult with its disability advisory board members.

If DOT’s Aviation Enforcement Office receives a complaint about a relief area not being available or maintained, the carrier would ultimately be responsible. With the revised rule, DOT effectively makes both authorities jointly responsible.

The FAQs specifically require that if a service animal user requests assistance in finding the service animal relief area, “it would be the responsibility of the carrier to accompany a passenger traveling with a service animal to and from the animal relief area.” If the presently proposed rules are made final, this responsibility would also be shared with the airport operator.

The FAQs state that a relief area should be designated solely as such to “keep the area free of hazards and distractions,” and to help prevent the spread of waste contamination. Also, the site should be adequate “for larger dogs to use” and “equipped with adequate lighting to enhance usability and security.” Gravel is recommended because it “can be disinfected adequately to reduce the chance of germs being spread between animals or being carried outside of the relief area.”

Areas should be fenced so that dogs can get a little exercise and smell the area before they relieve themselves. Perhaps, as is done by some cruise lines, "dog litter" could be used.

“Service animal relief areas will often include grassy space, drinking water, cleaning capabilities such as water hoses and disposal containers, and appropriate drainage. Generally, maintenance of grassy areas is only practical on the public landside, not airside, but artificial materials may be used for service relief areas located on the sterile side.”

TSA seems to feel that if airports do not have space for a limited service animal relief area on the sterile side, they “may provide travelers with escorted access to non-designated outdoor areas for the purpose of service animal relief.” In the next paragraph, the TSA guidelines mention that the escort should be “badged.”

The Transportation Security Administration was formerly part of the Department of Transportation, but was transferred to Homeland Security in 2003. Therefore, where security issues may be involved, such as where a relief area is outside of security checkpoints, TSA input will be required.

Conclusion

It is likely that this regulation will be fast-tracked, so people who travel with dogs in the cabin should make their opinions known by the close of the comment deadline on November 28, 2011. Although the proposal may be somewhat redundant in that a service animal relief area already applies to carriers, some carriers have only limited or temporary space in airports, and may not have much influence with airport operators. Therefore, the regulation is important and issues such as the number, placement, and size of relief areas should be specified in the final rules. Also, the availability of assistance will be important for some individuals traveling with service animals, who should now make their needs known to the Department of Transportation, particularly since it seems to be willing to listen.

In sum, users of service animals, and persons who travel with dogs generally, are being given the opportunity to make comments on:

1. Where relief areas should be located, i.e., inside terminals, inside and outside terminals, within a certain distance of a main concourse, and/or reachable within a certain time frame, such as 10 or 20 minutes. Travelers who have had problems with specific airports might discuss those airports, since this may provide the Department with useful data that will apply to other airports.

2. Whether assistance should be provided by airport personnel. Again, individual experiences will help the Department develop a rule that will be helpful to all service dog handlers who might benefit from assistance.

3. What sorts of maps and other information should be provided, what should be placed on airport websites, whether carrier websites should provide the same data or link to airport websites, what signage should be inside airports, and whether airport personnel should generally be informed and therefore able to help passengers find relief areas. Here also individual experiences could be very helpful.

4. Whether airline and airport rules should be identical. In my opinion, this should probably be the case so that situations do not fall through the cracks.

There are many airports with many different issues, and it is quite possible that the Department has not thought of every issue that should be considered in the rules. Since the Department seems to be making a sincere effort to gather additional information from users, and since these rules will affect a great many passengers who travel with dogs, this is one case where I believe comments are important.

49 CFR 27.72 Boarding Assistance for Aircraft…(h) Service animal relief areas. Each airport with 10,000 or more annual enplanements shall consult with service animal training organization(s) and cooperate with airlines that own, lease, or control terminal facilities at that airport to provide at least one animal relief area in each airport terminal for service animals that accompany passengers departing, connecting, or arriving at the airport. To the extent that airports have established animal relief areas prior to the effective date of this subsection and have not consulted with service animal training organization(s), airports shall consult with service animal training organization(s) regarding the sufficiency of all existing animal relief areas.

John Ensminger is an attorney and member of the bars of the State of New York and the United States Supreme Court. His latest book, Police and Military Dogs: Criminal Detection, Forensic Evidence and Judicial Admissibility, has been released by Taylor & Francis/CRC Press, New York and London. His other publications include: Service and Therapy Dogs in American Society; Money Laundering, Terrorism, and Financial Institutions; and contributions on canine legal and scientific issues to Forensic Science International, the Journal of Forensic Sciences, the Journal of Animal and Natural Resource Law, the Journal of Veterinary Behavior, the Journal of Animal Law, ABA General Practice, Tax Notes, and the Journal of Forensic Psychology Practice. John is a Contributing Editor of the Animal Legal & Historical Center of the Michigan State University College of Law.